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Immigration issues: more red tape

17 July 17

Licensing briefing: the new immigration rules requiring right-to-work checks on all potential employees pose serious issues for all employers in the licensed trade

by Tom Johnston

This time last year I wrote about proposed changes to the rules relating to immigration in so far as they related to applications for personal and premises licences. These have still to come into force; however, there are important immigration provisions now in force which affect every licensee.

The relevant law is to be found in ss 34 and 35 of the Immigration Act 2016, relating to illegal working. Section 35 introduced the new offence of employing an illegal worker. While they apply to all employers, they are of particular importance to the licensed trade, which uses large numbers of temporary and casual workers. These were highlighted in a presentation given by Stuart McWilliams of Morton Fraser at the recent Scottish Licensing Law and Practice conference. The law is very worrying for the trade.

No assumptions

It is important for our clients to realise that we are not referring just to full- or part-time employees. This could apply to a pot washer who works two hours a night or a cleaner who works one hour a day. If a licensee employs someone who does not have the right to work here, he or she could be fined or imprisoned and, with the new powers available soon, an immigration officer could apply to have the business shut down. The onus is on the client to prove that he or she carried out all necessary checks. The Home Office has produced a very clear guide which can be found online at bit.ly/2jxqqKB. Here are some relevant excerpts:

“You should conduct right to work checks on all potential employees. This means you should ask all people you are considering employing to provide you with their documents.”

The employer should:

see the original document (passport or visa);

check it in the presence of the holder, noting any expiry date or restrictions;

copy the original, date and sign the copy under a declaration that the original has been seen (Mr McWilliams tells us that this is the most common cause of non-compliance);

diarise any follow-up checks. If, for example, a visa expires on 31 July, you must not extend employment beyond that date without seeing an extended visa.

One must not overlook discrimination laws. Problems may arise if British workers are treated differently – one should see evidence of their right to work too. All of this must be done before the employment starts. All licensees should ensure that anyone who has the power to hire staff in their organisation is fully trained. To quote again from the guide:

“You should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK.”

What kind of visa?

My experience is that the public perception of an “illegal immigrant” is, perhaps, of someone landed by boat in the dead of night with no papers whatsoever. This can be the source of many common mistakes.

Not many of us are familiar with an immigration visa. They are not all the same. Many will have expiry dates – these must be checked: some may have conditions specifying precisely where the person may work (if, for example, he or she has been sponsored by family or friends). Others may be conditional – perhaps on the person undertaking a course of study, or limited to a certain number of hours per week. At the other end of the scale, it may be easy to assume that someone is eligible to work here simply because he or she has been here for a long time. The guide is simple to follow and refers to many other documents which can help an employer. There really is no excuse for getting it wrong.

Perhaps when you explain to your clients that, quite aside from an unlimited fine or five years’ imprisonment, they could face a civil penalty of up to £20,000 for each illegal worker, they will wake up to the seriousness of these measures, if they haven’t done so already.